Due Process of Law and Natural Justice 
                                                             Chhavi Agarwal*
                 "The principles of natural justice are easy to proclaim but their precise 
                              extent is far less easy to define"
                                                    
                                                               Evershed M R
       Introduction to Natural School : 
       Natural School of Law deals with norms which are higher and which is involved in search of
       absolute justice. It is the touchstone of all activities and the ruled as well as the ruler is bound by
       it. It can be divided into two parts : 
            - Natural law is higher law, which renders inconsistent laws invalid. If the law is contrary to
            natural law, it becomes ultra vires. Law in ancient and medieval period was prevalent in this
            sense.  
            - Natural law is an ideal and without affecting the constitutionality the law has to conform to
            its principles.  
       In absence of such principles peace and happiness cannot be established in the society. Natural law
       is the dictate of the reason. It contains transcendental and immutable principles to which the
       system has to confirm. Cicero pointed this out that law is 
                                             just and reasonable. It contains in itself 3
       things  
            - The human inclination towards goal and every element, which protects itself and therefore
            it, includes all elements necessary for protection of human life and it discards all rules,
            which are against the same.
                                
            - Like other animals, men have certain desires and object in life. Natural law includes rules
            pertaining to instincts.  
            - Due to its rationale nature it has inclination towards what is good and bad.  
       According to Diaz, Natural law has been used in 5 ways : 
            - as an ideal which directs the development of law  
            - It contains rules of morality, which does not allow permanent separation between law as it
            and law as it ought to be.
                               
                - It's an away to search absolute law.  
                - Natural law is content of law derived from reason  
                - It is necessary for the legitimacy and existence of any law.  
          Hence, natural school basically deals with the dictates of the reason and rationality.  
          DUE PROCESS OF LAW : 
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                The concept of due process originated in English Common Law.  The rule that individuals 
                shall not be deprived of life, liberty, or property without notice and an opportunity to defend
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                themselves predates written constitutions and was widely accepted in England.  The MAGNA 
                CARTA, an agreement signed in 1215 that defined the rights of English subjects against the
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                king, is an early example of a constitutional guarantee of due process.  That document 
                includes a clause that declares, "No free man shall be seized, or imprisoned ... except by
                the lawful judgment of his peers, or by the law of the land". This concept of the law of the
                land was later transformed into the phrase "due process of law."  
                The application of constitutional due process is traditionally divided into the two categories
                of  
                      * Substantive Due Process and  
                      * Procedural due process  
          These categories are derived from a distinction that is made between two types of law. Substantive
          Law creates, defines, and regulates rights, whereas procedural law enforces those rights or seeks
          redress for their violation. 
          A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be
          given notice of the proceedings and an opportunity to be heard before the government acts to take
          away one's life, liberty, or property. It is also, a constitutional guarantee that law shall not be
          unreasonable, arbitrary, or capricious. Due process is the principle that the government must
          respect all of the legal rights that are owed to a person according to the law. Due process holds the
          government subservient to the law of the land, protecting individual persons from the state. Due
          process has also been frequently interpreted as placing limitations on laws and legal proceedings,
          in order for judges instead of legislators to define and guarantee fundamental fairness, justice, and
          liberty. This interpretation has often proven controversial, and is analogous to the concepts of
          natural justice. 
          PARADOX OF SUBSTANTIVE DUE PROCESS: The doctrine of Substantive Due Process holds that
          the Due Process Clause not only requires "due process," that is, basic procedural rights, but that it
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          also protects basic substantive rights.  "Substantive" rights are those general rights that reserve to
          the individual the power to possess or to do certain things, despite the government's desire to the
          contrary.5 These are rights like freedom of speech and religion. "Procedural" rights are special
          rights that, instead, dictate how the government can lawfully go about taking away a person's
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          freedom or property or life, when the law otherwise gives them the power to do so.  It is not only 
          that appropriate and just procedures (or "processes") be used whenever the government is
          punishing a person or otherwise taking away a person's life, freedom or property, but that these
          clauses also 
                       guarantee that a person's life, freedom and property cannot be taken without
          appropriate governmental justification, regardless of the procedures used to do the taking. In a
          sense, it makes the "Due Process" clause a "Due Substance" clause as well. Substantive Due
          Process provides comprehensive nation-wide protection for all our most cherished ri
                                                                                               ghts. 
          Supporters of this concept argue that the doctrine is a simple recognition that no procedure can be
          just if it is being used to unjustly deprive a person of his basic human liberties and that the Due
          Process Clause was intentionally written in broad terms to 
                                                                give the Court flexibility in interpreting
          it. Critics claim that "Substantive Due Process" is an oxymoron and that there is no way a
          reasonable person with a sixth 
                                        grade grasp of grammar could read the "Due Process" Clause to
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          assure anything but procedural rights.  Critics in America say that when the Court uses judicial
          review to enforce these pseudo-Constitutional rights they are stealing the legitimate law-making 
          power from the state legislatures. 
          STATUS IN AMERICA : 
                 The due process clause of the Fifth Amendment, ratified in 1791, asserts that no person
                 shall "be deprived of life, liberty, or property, without due process of law." The Due Process
                 Clause of the Fourteenth Amendment, ratified in 1868, declares," Nor shall any State
                 deprive any person of life, liberty, or property, without due process of law". In Den v.
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                 Hoboken Land and Improvement Company , the first Supreme Court case to attempt to 
                 define the Fifth Amendment's " due process of law " provision, Justice Benjamin R. Curtis,
                 for a unanimous court, stated that the "words ' due process of law ' were undoubtedly
                 intended to convey the same meanin
                                                  g as the words 'by the law of the land,' in Magna Carta.
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                 Lord Coke, in his commentary on those words ... says, they mean due process of law."
                 Justice Curtis continued and noted that although the Constitution did not define " due
                 process of law," provided no description of those processes which were intended or
                 forbidden and did not declare the principles to be applied: It is a restraint on the legislative
                 as well as on the executive and 
                                                 judicial powers of the government, and cannot be so
                 construed as to leave Con
                                        gress free to make any process " due process " by its mere will ...
                 We must first examine the Constitution ... to see whether this process be in conflict with
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                 any of its provisions.  The case of Stuart v Palmer  has to be considered in which it was 
                 declared that "due process of law" is based upon the first principles of natural law, which is
                 older than written constitutions, that a citizen should not be deprived of his life, liberty or
                 property without an opportunity to be heard in defense of his ri
                                                                           ghts, and the constitutional
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                 provision that no person shall be deprived of these without due process of law.  This 
                 concept of "due process" is almost analogous to principles of natural justice. Basically due
                 process has not been attempted to define as it is based on the concept of free 
                                                                                         government
                 and wide 
                         gamut of rights. The word "due" in American sense is interpreted as "reasonable",
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                 "just" and "proper".  The power to decide as to the reasonability of the same is vested in 
                 the courts.  
          This concept augmented and broadened the scope of rights in America leading to a bunch of
          uncertainty.14 The decisions on the question of reasonability are not uniform in USA. Moreover, 
          doctrine of police power is established in USA to restrict the ambit of "due process" i.e. doctrine of
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          governmental power to regulate private rights in public interest.  
          STATUS IN INDIA : 
          In order to surmount the uncertainty, which would arise because of broadening of scope of rights
          like in America, Indian constitution makers restricted it to procedure established by law.16 The 
          phrase "procedure established by law" seems to be borrowed from article 31 of the Japanese
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          Constitution, which gives the legislature the final word.  Gopalan  held the field for almost three 
          decades. It gave legislature a carte blanche to enact a law to provide for arrest of a person without
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          much procedural safeguards.  It gave the ultimate power to the legislature to decide what was 
          going to be the procedure to curb the liberty of a person under article 21. This was an absolute
          right given to the legislature. It held that the term "law" in article 21 could not be understood as
          principles of natural justice. In its normal connotation it should means procedure established by
          law means law enacted or State made law and not the American concept of due process which
          simple means vague and uncertain principles of natural justice.20 It was held by the majority that 
          procedure established is in the nature of "Lex" and not "Jus". Jurisprudentially speaking Gopalan
          reflected the sway of positivism the superior authority of law - the thoughts of Austin. An extreme 
          view was taken during the emergency of 1975-1977 when Supreme Court, in one of the most 
          unfortunate decisions, held that once article 21 was suspended by a presidential order the court
          could not enquire whether the deprivation of life or liberty of an individual was authorized by
          law.21  
          Prof Hart and Prof Fuller attacked this analytical separation of law. According to them the law
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          should discharge the prerequisite of justice and rationale. In Maneka Gandhi v UOI  it was held 
          that a procedure lacking rationale and fairness is void. Procedure as established by law should not